CALIFORNIA CASE LAW UPDATE – Selected California Cases
California Supreme Court (July 1, 2007 – July 31, 2007)
Selected Decisions:
People v. Geier (7/2/2007, S050082) 41 C4th 555: Crawford holds that the 6th Amendment bars admission of testimonial hearsay unless the wit. appears at trial or the defendant had a prior opportunity for cross. Is this testimonial? A statement is testimonial if it’s made to or by a law enforcement officer or agent; describes a past fact; and is for possible use at a later trial. The California Supreme Court holds that a lab report of a contemporaneous test isn’t a PAST fact, it’s a current one. So it’s not testimonial. They do say that some business record documents are testimonial if they contain historical facts. (But see People v. Ayers (2005) 125 CA4th 988 [police reports not admissible].)
People v. Geier (7/2/2007, S050082) 41 C4th 555: A conviction and death sentence are affirmed on automatic appeal over claims of error regarding: 1) joinder; 2) exclusion of third party culpability evidence; 3) exclusion of an allegedly incriminating videotaped statement by a third party; 4) admission of evidence; 5) jury instruction; 6) a failure to give a unanimity instruction; 7) DNA evidence; 8) judicial misconduct; 9) denial of defense penalty phase instructions; 10) denial of an automatic motion to modify the verdict; 11) the constitutionality of the lying-in-wait special circumstance; 12) intercase proportionality; 13) constitutional challenges to the death penalty statute; 14) international law; and 15) the cumulative effect of errors.
People v. Medina (7/9/2007, S137055) 41 C4th 685: A completed carjacking is not required for a conviction of attempted kidnapping during a carjacking. Also, attempted carjacking and attempted kidnapping are inherently lesser-included offenses within the crime of attempted kidnapping during a carjacking.
People v. Palacios (7/12/2007, S132144) 41 C4th 720: PC 12022.53(d) firearm enhancements are not limited by the multiple punishment prohibition of PC 654. Appellant was convicted of one count each of attempted murder, kidnapping for carjacking, and kidnapping for robbery, where one shot was fired, at one victim. The court permitted the imposition of the gun use enhancement on all three counts.
People v. Black (7/19/2007, S126182) 41 C4th 799: Defendant did not forfeit his right to challenge on appeal the imposition of the upper term sentence by failing in trial court to request a jury trial on aggravating circumstances. Imposition of an upper term sentence does not violate a defendant’s Sixth Amendment right to a jury trial under Cunningham v. California (2007) ____ US ____ [127 SCt 856], where at least one aggravating factor has been established by the jury’s verdict, the defendant’s admissions, or the defendant’s prior convictions. Neither Cunningham nor the relevant prior high court decisions apply to the imposition of consecutive terms.
People v. Sandoval (7/19/2007, S148917) 41 C4th 825: Court violated the defendant’s Sixth Amendment right under Cunningham, where it imposed upper term sentence for voluntary manslaughter citing aggravating circumstances that were based solely on the facts underlying the crime. Such facts included the fact that the killing involved a great amount of violence; the defendant engaged in callous behavior and lacked any concern regarding the consequences of her actions; the victims were particularly vulnerable because they were unarmed, inebriated, and ambushed from behind; defendant was the “motivating force” behind the crimes; and defendant’s actions reflected planning and premeditation. The upper term was not based on the defendant’s own admission, the jury’s verdict, or any prior convictions. The error was not harmless beyond a reasonable doubt, warranting reversal of upper term sentence, especially where the jury rejected the prosecution’s premeditation theory and found defendant guilty only of voluntary manslaughter indicates it would not have found the aggravating circumstances pertaining to her state of mind. However, on remand, the court has discretion to select either the upper, middle, and lower terms without requiring a finding of aggravating and mitigating circumstances. The trial court will be required to specify reasons for its sentencing decision, but will not be required to cite “facts” that support its decision or to weigh aggravating or mitigating circumstances. (See newly enacted PC1170(c).) The court’s ruling will be subject to appeal for abuse of discretion. The court rejected the argument that the new scheme violates the prohibition of ex post facto laws. Unbelievably, the Supreme Court holds that since there is little impact on the defendant’s sentence (see Miller v. Florida (1987) 482 US 423 reversed the sentence based on an ex post facto violation), there is no ex post facto violation and this case is distinguishable from Miller.
People v. Hoyos (7/23/2007, S041008) 41 C4th 872: In an automatic appeal of a death penalty sentence, the trial court’s denial of defendant’s motions for new trial and to modify the penalty verdict is affirmed in its entirety.
In re Hardy (7/26/2007, S022153, S093694) 41 C4th 977: Evidence that this defendant is actually innocent and that another person was the killer did not meet the standard for granting habeas corpus relief, which is that the evidence undermines the DA’s entire case. However, it was ineffective for trial counsel to fail to investigate all this evidence, which was readily available. The guilt verdict was not reversed because even if the defendant wasn’t the killer, there was evidence that he was a conspirator. However, the sentence of death was reversed. Evidence of innocence, or even that the defendant wasn’t the actual killer, is admissible in the penalty phase. The failure to present that evidence was ineffective and so the court reverses the sentence of death.
People v. Zambrano (7/30/2007, S035368) 41 C 4th 1082: Sheriff who was merely the jailer, not an investigating agency, had no Brady disclosure duty.
People v. Zambrano (7/30/2007, S035368) 41 C4th 1082: In an automatic appeal of convictions of first degree murder and attempted murder and the resulting death penalty, the judgment is affirmed in full over multiple claims of error, including but not limited to: 1) Wheeler/Batson; 2) restriction on voir dire; 3) pretrial and nontrial issues; 4) guilt trial evidentary issues; 5) prosecutorial misconduct at trial; 6) instructional error; and 7) penalty phase misconduct.
Grants Of Review:
People v. Anderson REV GTD (S152695, 7/11/2007) 149 CA4th 183 (mod. 150 CA4th 305a): Do double jeopardy principles preclude retrial of a sentencing allegation under the one strike law (PC 667.61) if the jury convicts the defendant of a qualifying offense but is unable to reach a verdict on the related sentencing allegation? (See also Porter v. Superior Court, below.)
Porter v. Superior Court REV GTD (7/11/2007, S152273) 148 CA4th 889: Do double jeopardy principles preclude retrial of the allegation that an attempted murder was willful, deliberate and premeditated (PC 664(a)) or retrial of an enhancement for allegedly committing the crime for the benefit of a criminal street gang (PC 186.22(b)) if the trial court granted a motion for a new trial on those allegations because the jury’s verdicts were “contrary to . . . [the] evidence” within the meaning of PC 1181(6)? (See also People v. Anderson REV GTD (S152695, 7/11/2007) (149 CA4th 183.)
People v. Julius REV GTD (7/11/2007, S152672) 2007 Cal. App. Unpub. LEXIS 3313: Briefing deferred pending decision in People v. Izaguirre REV GTD (6/8/2005, S132980) 2004 Cal. App. LEXIS 2265, and People v. Sloan REV GTD (6/8/2005, S132605) 126 CA4th 1148, which concern whether enhancement allegations should be considering in determining whether a lesser offense is necessarily included in a charged offense as pled in the information or indictment.
People v. Kim REV GTD (7/25/2007, S153183) 150 CA4th 1158: (1) Is a person who petitions for a writ of habeas corpus “restrained of his liberty” within the meaning of PC 1473(a), when he is in the custody of federal immigration officials solely because of a California conviction on which the sentence has fully expired? (2) Is the writ of error coram nobis available to challenge a California conviction on which the sentence has fully expired if the conviction is presently the basis of federal immigration proceedings and the petitioner alleges that trial counsel failed to properly advise him as to the immigration consequences of the conviction and that he did not in fact know what those consequences would be? (3) Did the trial court have the power to grant petitioner’s non-statutory motion to vacate judgment for ineffective assistance of counsel in failing to properly advise him of the immigration consequences of the conviction?
California Courts of Appeal (June 14, 2007 – July 31, 2007)
Selected Decisions:
People v. Westbrooks (6/14/2007, D048175) 151 CA4th 1500: CALCRIM 220 upheld against a challenge that it limits the jury to considering the evidence that was actually received.
People v. Whaley (6/26/2007, H030167) 152 CA4th 968: When the jury in this Sexually Violent Predator case looked like it was going to hang, the judge properly told the jurors to role play by arguing the other side’s positions. But see concurring opinion, which warns that the majority’s assurance that the judge was just making a “suggestion” fails to recognize the reality that when the judge makes a suggestion it is likely to be viewed by the jurors as essentially a direction.
People v. Southard (6/27/2007, A112114) 152 CA4th 1079: PC 466 is possession of burglar tools with intent to break into a building.
People v. Marks (7/2/2007, F049797) 152 CA4th 1325: Defendant’s right to due process was violated by the court’s conducting a portion of voir dire off the record, outside the presence of the prospective jurors, and outside the defendant’s presence without his waiver. (People v. Bradford (1997) 15 C4th 1229, 1356-1357.) That portion of the jury selection was a critical stage of the proceedings where the discussions concerned the suitability of certain persons to serve as jurors. (Ibid.) The defendant has the burden of demonstrating that his absence prejudiced his case or denied him a fair trial. (People v. Panah (2005) 35 C4th 395, 443.) The defendant was prejudiced when his absence and the absence of the prospective jurors induced a breakdown in attorney-client communication about multiple peremptory challenges, including to a prospective juror who wound up on the panel even though both the defendant and counsel believed she should have been excused.
People v. Boysen (7/3/2007, D046763) 152 CA4th 1409: Determining whether defendant in murder case was denied due process due to 24-year preaccusation delay, trial court properly applied balancing test weighing actual prejudice to the defendant against prosecution’s justification for delay. Evidence was sufficient to support the court’s finding that the defendant was prejudiced by the delay where the only witnesses who could have testified in support of the defendant’s alibi defense and third-party culpability theory had passed away during the delay, and the only change in the prosecution’s ability to prosecute case during delay was the gathering of some new forensic evidence that illuminated how the murders occurred but did not point to defendant as the killer. The court acted properly in dismissing the prosecution of the defendant before trial on the basis that nothing would be gained by delaying its ruling on the motion to dismiss until the end of a lengthy and expensive trial.
People v. Saracoglu (7/9/2007, B182220) 152 CA4th 1584: The court did not abuse its discretion in admitting a statement made by domestic violence victim, under “excited utterance” exception to the hearsay rule (EC1240), to the police 30 minutes after the incident where the victim was clearly distraught when she made the statements after she had driven to the police station. (How can that be an excited utterance?) The victim’s statements were nontestimonial, and their admission did not violate Confrontation Clause, Crawford, Davis v. Washington (2006) ____ US ____ [165 LEd2d 224; 126 SCt 2266], or People v. Cage (2007) 40 C4th 965, where circumstances suggested that officer’s primary concern in questioning her was to deal with her medical and emotional state rather than to gather evidence for possible prosecution, and victim’s primary concern at the time was obtaining police protection rather than seeing the defendant prosecuted.
People v. Caesar (7/11/2007, D050387) 153 CA4th 114: The rule for aider liability is that the aider is guilty of the crime being aided and any crime that’s a natural and probable consequence of that crime. That turns out to mean whether any other crimes were objectively reasonably foreseeable. (People v. Prettyman, 14 C4th 248; People v. Nguyen, 21 CA4th 518.) There’s another rule that an aider can be guilty of a more serious crime than the perpetrator. (People v. McCoy, 25 C4th 1111.) However, a defendant can’t be convicted on the natural and probable consequences theory of a crime more serious than the crime committed by the perpetrator.
Cuccia v. Superior Court (7/16/2007, B197278) 153 CA4th 347: The decisions of the Court of Appeal are binding on all superior courts of this state, and a trial court must follow an unambiguous holding of the Court of Appeal even if it believes it was erroneously decided unless there is a conflicting appellate decision or the facts are fairly distinguishable. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 C2d 450.)
People v. Muhammad (7/16/2007, A110774) 153 CA4th 358: Various subdivisions of PC 646.9 provide sentences for simple stalking, stalking in violation of a restraining order, stalking with a prior criminal threats conviction, and stalking with a prior felony stalking conviction. These subdivisions do not describe separate crimes, they are penalty provisions triggered by various characteristics. So a defendant can only be convicted of one of these, not four.
People v. Cardenas (7/17/2007, B190463) 153 CA4th 445 [Rehearing granted 8/15/2007]: Cunningham error is not cured because the court could have sentenced properly.
People v. Cromp (7/18/2007, C052319) 153 CA4th 476: CALCRIM 1191, which allows jurors to infer from the fact that a defendant committed a prior sexual offense that he was disposed to commit sexual offenses and, therefore, likely committed the current offenses, did not violate defendant’s due process rights where instruction cautioned the jury that it was not required to infer guilt and that such a conclusion would alone be insufficient to support a conviction; and where evidence of defendant’s prior rape of a developmentally disabled woman logically tended to prove he committed the current offenses of sexually molesting minors, who are also particularly vulnerable victims.
People v. Holmes (7/19/2007, C052069) 153 CA4th 539: CALCRIM 3517 deals with lessers. It says that the DA has the burden of proving beyond a reasonable doubt that the defendant committed the greater offense “rather than” a lesser offense. Defense claim rejected that the quoted language unfairly characterizes the burden of proof in a comparative manner.
People v. Holmes (7/19/2007, C052069) 153 CA4th 539: Appellant challenged the language of CALCRIM 3517 which told the jury that the prosecutor had the burden of proving beyond a reasonable doubt that the defendant committed kidnaping by violence or menace rather than a lesser included offense of false imprisonment. He argued that the phrasing of the prosecutor’s burden as a comparative lessened the burden of proof. The appellate court rejected the argument and affirmed. CALCRIM 3517 was not the primary instruction on burden of proof, and other instructions given properly instructed the jury on the prosecutor’s burden. Appellant failed to demonstrate that a reasonable juror interpreted CALCRIM 3517 in the manner he claimed.
People v. Medina (7/23/2007, B189049) 153 CA4th 610: Insufficient evidence to establish that the principal’s act of shooting at the victims’ vehicle was a natural and probable consequence of a fistfight that took place between gang members at a house party, and thus the evidence was insufficient to show that the two gang members who instigated the fight aided and abetted in the victim’s murder, where the fight, which broke out when the victim showed up unannounced at the door as gang members were celebrating, was not planned. (See People v. Prettyman (1986) 14 C4th 248, 260-262; People v. Mendoza (1998) 18 C4th 1114, 1133.) The facts established that the two gangs involved were from entirely different geographical areas and not in the midst of a turf “war”; there was no evidence of any prior acts of violence between the gangs; there were no weapons involved during the fight, and there was no evidence that anyone had a weapon of any kind prior to the shooting; there were no threats made to the victim before, during, or after the fight; the shooting occurred after the fistfight ended and enough time had passed for the host to escort victim to his car and engage him in a short conversation before he drove away. There was no evidence that principal and the two gang members discussed shooting victim or that the gang members encouraged the shooting or were aware that it was about to take place.
People v. Blick (7/24/2007, A112744) 153 CA4th 759: Concealing or knowingly failing to disclose the occurrence of an event affecting the continued right to receive an insurance benefit, as within the meaning of PC 550(b)(3), is a crime of specific intent. The omission of the specific intent element from CALJIC 15.26 regarding PC 550(b)(3) was prejudicial where jury was not instructed on the defense of good faith and the prosecutor erroneously argued before jury that the defendant could be convicted without proof of intent to defraud.
People v. Blick (7/24/2007, A112744) 153 CA4th 759: The trial court’s failure to include a specific intent to defraud requirement rendered the jury instructions for worker’s compensation fraud erroneous. Blick was convicted of three insurance fraud offenses for collecting benefits for a knee injury when surveillance tapes showed that she was able to work, including a conviction for a violation of PC 550(b)(3): knowingly failing to disclose the occurrence of an event which affects the person’s entitlement to benefits. The court instructed the jury that “every person who, with the specific intent to do so, conceals or fails to disclose…” Blick argued on appeal that the trial court’s instruction construed PC 550(b)(3) as a strict liability offense which did not require a specific intent to defraud, and therefore violated her right to due process. She argued that it deprived her of a “good faith belief” defense that she intentionally concealed information with the innocent belief that the information was irrelevant to her worker’s comp status. The appellate court disagreed that the instruction construed PC 550(b)(3) as a strict liability offense. However, PC 550(b)(3)requires a specific intent to defraud. The trial court’s instruction here added specific intent language to the proscribed act, that of concealing an event, instead of adding the specific intent to defraud. Therefore, the instruction was erroneous. Since there was a reasonable probability that the instructional error affected the jury verdict, reversal was required.
People v. Arias (7/25/2007, A112810) 153 CA4th 848: The term “false compartment,” as used in HS11366.8, which makes it a felony to possess, use, or control a false compartment in an automobile with the intent to conceal controlled substances therein, refers only to original factory equipment of a vehicle that has been modified. This court disagrees with the meaning the Court of Appeal gave to false compartment in People v. Gonzalez (2004) 116 CA4th 1405, 1414-1415.)
People v. Arias (7/25/2007, A112810) 153 CA4th 848: Conviction for transportation of a controlled substance, possession of that substance for sale, and possession of a false compartment are reversed as to conviction under HS 11366.8(a) where there was instructional error and insufficient evidence that defendant used or possessed a false compartment.
People v. Fritz (7/26/2007, G037428) 153 CA4th 949: Defendant’s prior shoplifting convictions were not admissible to impeach his post-arrest statement to police. (See People v. Jacobs (2000) 78 CA4th 1444.) The statement that he had never stolen anything, was offered by the prosecution, not the defense, nor was such evidence admissible to show the defendant’s “consciousness of guilt.” The prosecution could not impeach its own evidence. (See People v. Mayfield (1997) 14 C4th 668, 748; People v. Lavergne (1971) 4 C3d 735, 744 [a party cannot elicit otherwise irrelevant testimony on cross-examination merely for the purpose of contradicting it.) Even if evidence of prior convictions was admissible, it was sufficiently prejudicial that its admission was an abuse of discretion where probative value was minimal. Erroneous admission of evidence of prior convictions required reversal under reasonable probability test where the defendant was never observed in the act of stealing or in possession of stolen merchandise but was merely observed acting suspiciously in one incident and found to have been waiting in the car for his girlfriend on another occasion, during which she apparently did steal merchandise.
People v. Fritz (7/26/2007, G037428) 153 CA4th 949: In People v. Jacobs (2000) 78 CA4th 1444, the defense offered a statement by the defendant to the police into evidence (in response to a portion of the statement introduced by the DA), and the DA was then permitted to impeach that statement with the defendant’s prior felony convictions. In this case, the DA offered the defendant’s statement to the police denying guilt; the DA then impeached that statement with the defendant’s prior convictions. The court says this is not OK. Only where the defendant testifies or at least offers the statement can the Jacobs rule be invoked.
People v. Miller (7/27/2007, F049646) 153 CA4th 1015: Defendant has a constitutional right to represent himself at sentencing upon timely request. The trial court erred in ruling that the request made more than two months prior to scheduled sentencing was untimely and that the request for self-representation at sentencing was subject to court’s discretion. The court found, based on Faretta, that the reversal of a timely Faretta motion is reversible per se. (See People v. Welch (1999) 20 C4th 701, 729.)
People v. Miller (7/27/2007, F049646) 153 CA4th 1015: Where a defendant makes a timely demand to go pro per, the court must grant that motion. (Faretta, 422 US 806.) During trial, the ruling on such a request is in the discretion of the court. Here, the defendant asked to go pro per at sentencing, which was 2 months away. Such a demand is timely with respect to sentencing, and so must be granted.
People v. Dixon (7/27/2007, F050101) 153 CA4th 985: Defendant voluntarily waived his right to a jury trial on both the gun use enhancement under PC 12022.53(b) and the lesser included enhancement of use of a deadly weapon, when he waived jury trial on the matter. (See People v. Beller (1985) 172 CA3d 904, 911; sec. 1159.) One cannot commit an offense by personally using a firearm and not at the same time commit an offense by personally using a deadly weapon. (People v. Aguilar (1997) 16 C4th 1023, 1029.) The court found that there was a voluntary waiver of jury trial (see People v. Collins (2001) 26 C4th 297, 305; see also Colorado v. Spring (1987) 479 US 564, 573.) Even though the court’s initial statements would lead to the conclusion the jury trial waiver was involuntarily induced, latter statements made by the court cured the problem. If there was an inducement, there was no prejudice analysis, as the error would be structural. (See Collins, at 311.)
People v. Flores (7/30/2007, F050958) 153 CA4th 1088: CALCRIM 220, [presumption of innocence and burden of proof beyond a reasonable doubt], does not, by instructing jurors to rely on “all the evidence that was received throughout the entire trial,” prevent them from considering a lack of prosecution evidence in determining whether a reasonable doubt exists as to guilt.
Ninth Circuit Court of Appeal (July 1, 2007 – July 31, 2007)
Selected Decisions:
Winzer v. Hall (7/23/2007, 9th Cir. No. 06-55327) 2007 U.S. App. LEXIS 17462: Admission of victims’ statements violated appellant’s Sixth Amendment right to confrontation. Appellant was convicted by a jury on two counts of terrorist threats for saying, “I’ll smoke you and your daughter,” while appearing to indicate he had a gun. The statement and gesture were proved at trial via testimony by police officers who interviewed the two victims at their home more than five hours after appellant left. The state court concluded that the victims’ statements to the officers fell under the spontaneous statement exception to the hearsay rule. The victim mother did not appear at trial; the victim daughter did not recall the threat and did not see the gesture. In this appeal from the denial of his federal habeas petition, appellant contended that his Sixth Amendment right to confrontation was violated. The appellate court held that Crawford v. Washington did not apply because it was decided after appellant’s trial and appeal. However, federal law before Crawford mandates reversal. The state court erred when it found that the statements were spontaneous; they were made hours after the event after an opportunity to reflect. Because the statements fell under no other exception and had no other guarantee of truthfulness, their admission violated the Confrontation Clause. The error was prejudicial because the statements were the only evidence of the threat.
